tdiu Kidney Transplant And Subsequent Va Proposal To Reduce Rating

[vaf]

The veteran underwent a medical discharge after nine years active duty, due to kidney failure. He underwent a transplant in 1998, and was supposed to undergo a follow-up C & P in 1999, which didn't take place until earlier this year. He was rated 100% until now, having received a proposal to reduce down to the minimum, which is 30%. He works full-time in an office job, sedentary work, and does not want to or have a need to pursue TDIU. However, he is suffering secondary effects from the immunosuppressant drugs (has had skin cancer, has GERD, and a suspected but yet undiagnosed case of sleep apnea), has had his gall bladder removed, all which was not in place before the surgery, and which have not been claimed separately, and therefore, not rated. He receives his treatment from the VA.

We've requested his records from the VAMC and the VARO, however, we won't see his claims file anytime soon, probably not before his hearing (he's filed an NOD and asked for a hearing).

I'm wondering if anyone here has successfully fought a proposal to reduce a disability rating post-kidney transplant, after five or more years have passed since the surgery, who is not TDIU. If so, I'd be interested to hear how you handled the NOD and how you framed your argument. Thanks!

[Captain D]

Hello everyone, I am new here. Thank you for all of the valuable information. Here is my case. I was in the Marine Corps and then the Army.  When I came back on active duty for the Army it was found out that I had some kidney issues. I was finally diagnosed with an autoimmune disease known as FSGS. I was subsequently discharged later that year in 1999. I received disability rating from the Army at 80%. I filed with the VA and received 100% IU.  Early 2002 I was put on dialysis. Later that year I received a kidney transplant from my older brother(also a Marine) from the National Institutes of Health. The VA never scheduled me for any exams. In 2009 I moved and never received the financial form that you have to fill out for Individual Unemployability. They stop my benefits and I contacted them and they told me why. I even drove hundreds of miles to the regional office in Florida. I finally reovered my 100% rating later that year. In 2013 I had a baby. My current wife and I were not married at the time, but subsuqsequently go married about a year later in 2014. I filed with the VA for dependant benifits for my daughter back to her birth in 2013 and for my wife and stepson from the date of marriage. Unfortunately,  I started going into end stage renal failure again due to the same disease, FSGS. So I decided in March of 2015 to file for Permanent and Total Disability, so that i could get Champ VA for my family.  I filed all the claims thru ebenfits. I recently received another kidney tranplant in Feb of this year (about 2 months ago). I also recevied a letter from the VA compensationa and penison that I was scheduled for a evalution which I went to on 3/28/16. 

After reading all of your comments, I am unsure if I did the right thing by filing for P&T.  I do not want to get reduced to 30%. As one gentlemen put it, A transplant is not an imporovement of End stage renal failure. My kidneys apparently don't work, and now I have 2 in my adominal area. My claim was based on the recurring FSGS and that now that it came back and has caused ESKD again it has shown it is unlikely to improve. I also am thinking to open up a claim for hypertension since that is normally what you always have after ESKD. My question is how do I get a protected rating so I don't have to go thru this crap with the VA anymore? Also, are there any other claims I should put in post transplant, like side effects from medicines so if they reduce me I could somehow have a combined 100% rating for P&T?  I currently take 2 immunosuprresants and prednisone for anti rejection. I have not been able to sleep due to the prednisone. Have been severely dehydrated becasue kidney is over producing urine, night sweats, tremors due to high dose of prograf, etc.

 

Thank you.

[Berta]

Was the C & P done at a VAMC or farmed out to a contractual doctor?

If it was done at a VAMC you can get a copy of it, and their Records access officer might have a simple form you can sign, for it, and if you can scan and attach the exam results here we could better understand if you need more evidence...(cover c file # name prior to scanning it)

I think they post  C & Ps at ebenefits but am not sure if that is just the ones done at a VAMC.

You can join ebenefits if you haven't yet.

I cant imagine any C & P doctor would find that your condition could possibly improve based on what you said but I am not a doctor and the VA doesn't care what I think.

You might get a favorable C & P as to the P & T status but if not you might have to consider obtaining an IMO (Independent Medical Opinion)

If the CHAMPVA depends on the IMO , that might be the best investment you can make because CHAMPVA is wonderful.

Was the second transplant done by a non VA hospital? Perhaps you could attempt to get a free IMO or low cost one ,from the doctor who did it. We have the IMO criteria here under a search .

You deal with a lot. I assume you get SSDI for this condition as well. ?

 

 

 

[Captain D]

Thank you Berta for your response. The C&P WAS done at a VAMC. Once she has compiled all of the info and submitted it, I will attach it here.  I will also check ebenefits next week to see if it is there.  The second transplant was not done at the VA. It was done at Miami Transplant Institute.  I may try to have my nephrologist give me an indepent IMO as well.  I tried to apply ofr SSDI but they said I did not qualify because I did not have enough credits within the last 5 years.

[Berta]

How could you even obtain work credits with this disability????

Was the SSA denial based on evidence within the time period that VA had dropped your disability % rating ,but that you got back again to 100%?

Was that a formal written denial or what someone told you by phone from the SSA?

[halos2]

Sorry to read this vets dilema. Glad you had him file for a hearing...especially since they would sever in 30 days had it not be requested. Good move vaf. I am hoping someone else with experience in transplant claims can assist you in your endeavors to help this vet. Good luck.

The veteran underwent a medical discharge after nine years active duty, due to kidney failure. He underwent a transplant in 1998, and was supposed to undergo a follow-up C & P in 1999, which didn't take place until earlier this year. He was rated 100% until now, having received a proposal to reduce down to the minimum, which is 30%. He works full-time in an office job, sedentary work, and does not want to or have a need to pursue TDIU. However, he is suffering secondary effects from the immunosuppressant drugs (has had skin cancer, has GERD, and a suspected but yet undiagnosed case of sleep apnea), has had his gall bladder removed, all which was not in place before the surgery, and which have not been claimed separately, and therefore, not rated. He receives his treatment from the VA.

We've requested his records from the VAMC and the VARO, however, we won't see his claims file anytime soon, probably not before his hearing (he's filed an NOD and asked for a hearing).

I'm wondering if anyone here has successfully fought a proposal to reduce a disability rating post-kidney transplant, after five or more years have passed since the surgery, who is not TDIU. If so, I'd be interested to hear how you handled the NOD and how you framed your argument. Thanks!

[broncovet]

I do not know anything about transplants, however the regulations state the VA must show that the SC condition has improved for a reduction in benefits to happen. How do you "improve" from a transplant?

Do you become "un transplanted"? I dont think so. Generally, I would suggest writing a letter stating that the Veterans condition has not improved, he continues to receive treatment from a transplant. JMHO

Edited August 21, 2009 by broncovet (see edit history)

[vaf]

Thanks -- I've been trying to find informaton on what the Board considered "sustained improvement." I'm guessing they're trying to make up for the fact that they forgot to examine him a year after surgery, and didn't discover the oversight until now. They're probably basing the proposal on the veteran's being off dialysis and holding down a full-time job. But he's got a lot of complications from the meds he's on, secondary effects that we'll be claiming, and that I believe should have been an inferred claim. Immunosuppressant drugs lower the body's ability to fight infection. The veteran's had skin cancer, as well as gall bladder removal, which I'm trying to connect to the use of the immunosuppressants he takes.

I've asked him to get an IMO from his physician to connect these conditions.

[Pete53]

Seems to me that having to have a transplant does not mean that you got well and now there are other things to worry about.

[deltaj]

Thanks -- I've been trying to find informaton on what the Board considered "sustained improvement." I'm guessing they're trying to make up for the fact that they forgot to examine him a year after surgery, and didn't discover the oversight until now. They're probably basing the proposal on the veteran's being off dialysis and holding down a full-time job. But he's got a lot of complications from the meds he's on, secondary effects that we'll be claiming, and that I believe should have been an inferred claim. Immunosuppressant drugs lower the body's ability to fight infection. The veteran's had skin cancer, as well as gall bladder removal, which I'm trying to connect to the use of the immunosuppressants he takes.

I've asked him to get an IMO from his physician to connect these conditions.

Make sure this veteran cites 38 CFR 3.343 and 38 CFR 3.344 in his appeal of the reduction. Keep in mind that filing any additional claims for service connection because this would require additional examinations. This seems to be a case of wrongful reduction without regard to the provisions of 38 CFR 3.343 and 38 CFR 3.344. (prior versions of these regulations were worded more fairly to the veteran.) By searching google under transplant AND reduction AND veteran I found a reference to a case by Richard Peale concerning his transplant and the decision seems to be made by the federal circuit but by searching under the last name Peale at the U.S. Court of Veterans Appeals I found nothing about it. I also searching under Richard Peale and federal circuit. I again found nothing. Does anyone know how to access 1999 federal circuit decisions to check the index of cases? I found some interesting cases by searching under sustained improvement AND reduction AND veteran. There seems to be at least one case of reduction after a sustained period of employment in Lawrence Greyzck v. West for a veteran who was employed for 12 years. A complete copy of the decision can only be found by searching under the case number 97-2204 at the website of the U.S. Court of Appeals for Veterans Claims. That case was unfavorable to the veteran but is cited favorably in other cases so there may be a federal circuit decision. In his appeal this veteran and his representative should point out that this veteran's sedentary occupation and his use of large humbers of immunosuppressant medications do not show this veteran attained improvement under the ordinary conditions of life. How many functioning kidneys does this veteran have? I suspect the answer is one and if so, having one functioning kidney is not an ordinary condition of life and requires a sedentary lifestyle and reduced protein intake in order to sustain the life of the kidney.

Edited August 21, 2009 by deltaj (see edit history)

[Bonzai]

There is also the condition of End Stage Renal Disease (ESRD) to be taken into account. When a patient has ESRD, it means that their kidneys have failed completely. The interesting part of this diagnosis, is that the diagnosis doesn't go away after a patient receives a kidney transplant. So therefore, they are still considered as having renal failure. There are also the long-term effects of autoimmune suppressant drugs, preventing the rejection of the kidney, to be considered; of which you have mentioned a few.

For case favorable to the veteran with kidney failure and cancer, click Here.

I hope this helps,

Louis

[broncovet]

Frankly, I think the VA is being more than a little bit ridicilious. If a Veteran looses other organs, say maybe gets his legs blown off, is the VA gonna say his condition "improved" when he got artificial legs, because he was able to learn to walk, and cut his disability? This proposed reduction is more of an insult than anything else...JMHO

You just dont "improve" from the loss of an organ. The Veteran needs to fight this, tooth and nail. Once a body part is lost, the Veteran merely adapts to this loss of organ and compensates in the best way possible.

I think the reason you cant find any precedent is that no idiot government bureaucrat has ever even considered this insane and inhumane effort for the government to save money before.

I can see it all now..."Grandpa, we are cutting your disability benefits because you are able to get around much better now with your new seeing eye dog and your new power wheel chair."

If I recall, the VA has to have the C and P "physician" (or at least a QTC quack) lie and say something to the effect "The Veterans loss of organ materially improved" in order to have this reduction of benefits stick. I dont know how long this Veteran has been SC'd...but if it has been a while, ONE lying QTC quack wont cut it, either. They would have to have at least TWO lying QTC quacks say that "the Veterans loss of organ materially improved. "

If they do get TWO QTC quacks to lie for money, then both of those quacks need to be investigated as that statement contradicts known medical knowledge..body organs just dont grow back..if your heart or kidneys fail, you get new ones, try to get by temporarily with dialysis or artificial heart, or you die. Period.

Edited August 21, 2009 by broncovet (see edit history)

[vaf]

The veteran has one working kidney (and two dead ones), you're right... I'll certainly look into all of this, since the meter is running on the 60 days he had to submit new evidence. I am so grateful to all of you for your help!

[Berta]

60 days????

I got a letter some time ago telling me I had 30 days in which to tell them I needed 60 days-so I had to respond within 30 days to tell them they had all of my evidence for almost 6 YEARS-

The rule now is usually 30 days period- unless they stated something different to you.

I griped at the Federal Register site when this new idea was open for public comment and I dont know if anyone else griped too-

unless they specifically said you have 60 days-the 30 day rule is now law for most responses to requests for more evidence.

[Berta]

I meant the mumbo jumbo in this rule:

http://docs.google.com/gview?a=v&q=cac...hl=en&gl=us

60 days to submit evidence-if that is what they said- then you do have the 60 days-

I wonder why my letter said I had 30 days to tell them I needed 60 days.

Then again it was from the Buffalo VARO-

I meant the mumbo jumbo in this rule:

http://docs.google.com/gview?a=v&q=cac...hl=en&gl=us

60 days to submit evidence-if that is what they said- then you do have the 60 days-

I wonder why my letter said I had 30 days to tell them I needed 60 days.

Then again it was from the Buffalo VARO-

[Berta]

I found this recent decision as to transplants and the way VA rates them:

http://www.va.gov/vetapp09/files1/0909396.txt

Creatine and BUN (Blood Urea Nitrogen) counts should be found in his Blood Chem reports.

There are other cases on kidney transplants at the BVA that could help you.

Edited August 21, 2009 by Berta (see edit history)

[vaf]

Fabulous, thanks. I think a lot of this is the fact that the VA overlooked performing the C & P that was supposed to take place a year after surgery, and then all through the years until this year. The decision is a joke, just a few paragraphs of no real explanation as to why this is happening. The attached is a cut and paste of the rating decision, just the reasons and bases part, and in fact, I don't see where BUN was discussed at all. There's also no discussion of how the VA weighed this decision in consideration of his entire medical history.

He doesn't hold separate ratings for hypertension, skin cancer, GERD, gall bladder disease, or insomnia. He suffers from all of those, and they're on his records at the VA (which is why I want to pursue inferred claims as soon as I can see those records). No discussion of that at all.

I told him I need to see the C & P report and the labs from this most recent exam as soon as we can get them.

Rating_Decision_Post_Kidney_Transplant.doc

[vaf]

Any comments on the "reasons and bases" attached in my previous post for the decision would be greatly appreciated.

Edited August 22, 2009 by vaf (see edit history)

[deltaj]

There is also the condition of End Stage Renal Disease (ESRD) to be taken into account. When a patient has ESRD, it means that their kidneys have failed completely. The interesting part of this diagnosis, is that the diagnosis doesn't go away after a patient receives a kidney transplant. So therefore, they are still considered as having renal failure. There are also the long-term effects of autoimmune suppressant drugs, preventing the rejection of the kidney, to be considered; of which you have mentioned a few.

For case favorable to the veteran with kidney failure and cancer, click Here.

I hope this helps,

Louis

Bonzai, This was an interesting case you provided a link to. Note that the veteran received a transplanted kidney but no mention of this was made in ratings except that the new kidney developed a stone requiring diet therapy and a 30% rating. I believe I read somewhere awhile back that end stage renal disease is a qualifying condition for Medicare without a waiting period and is granted irregardless of work credits. I believe you are correct that a diagnosis of end stage renal disease does not go away and accordingly recommend that the veteran who is fighting over the reduction of his rating due to the kidney transplant contact Medicare about his eligibilityfor Medicare.

[deltaj]

Fabulous, thanks. I think a lot of this is the fact that the VA overlooked performing the C & P that was supposed to take place a year after surgery, and then all through the years until this year. The decision is a joke, just a few paragraphs of no real explanation as to why this is happening. The attached is a cut and paste of the rating decision, just the reasons and bases part, and in fact, I don't see where BUN was discussed at all. There's also no discussion of how the VA weighed this decision in consideration of his entire medical history.

He doesn't hold separate ratings for hypertension, skin cancer, GERD, gall bladder disease, or insomnia. He suffers from all of those, and they're on his records at the VA (which is why I want to pursue inferred claims as soon as I can see those records). No discussion of that at all.

I told him I need to see the C & P report and the labs from this most recent exam as soon as we can get them.

This attached file 97-2003 does not mention the date of examination. This is absolutely necessary for appeal because a rating in effect for 5 years are more is not supposed to be reduced based on one V.A. examination under 38 CFR 3.344©. (A rating reduced contrary to 38 CFR 3.344 © when in effect for 5 years or more based on one V.A. examination would be clear and unmistakable error.) Interestingly, the decision also does not mention an effective date other than the grant of the original rating. Also the decision does not mention how long this veteran was employed. Was this veteran working for 12 months or more at the time of V.A.'s decision to reduce this veteran's rating? If so read 38 CFR 3.343 © and use it in the appeal. In other words the Board may have reduced this veteran's 100% rating contary to the clear and convincing error standard of 38 CFR 3.343 ©. My computer is acting up. I HAVE INCLUDED THE LETTER C IN PARANTHESES IN EACH OF THESE REGULATION NUMBERS AND EACH TIME IT HAS DISPLAYED AS A C IN A CIRCLE WHEN I EDITED THIS POST.

Edited August 23, 2009 by deltaj (see edit history)

[deltaj]

I found this recent decision as to transplants and the way VA rates them:

http://www.va.gov/vetapp09/files1/0909396.txt

Creatine and BUN (Blood Urea Nitrogen) counts should be found in his Blood Chem reports.

There are other cases on kidney transplants at the BVA that could help you.

As far as I know creatine and blood urea nitrogen levels are used by doctors to help evaluate kidney function.